Medical License Revocation and Suspension Issues

In this day and age, the Pennsylvania licensing boards are finding any reason possible to suspend or revoke a licensee’s license. One of the easiest catch all phrases to invoke a license suspension/revocation is violating the “moral turpitude” provision of the administrative laws/regulations. This provision addresses all conduct that is contrary to honesty. Yurick v. Board of Osteopathic Examiners, 43 Pa. Commonwealth Ct. 248, 402 A.2d 290 (1979); Moretti v. State Board of Pharmacy, 2 Pa. Commonwealth Ct. 121, 277 A.2d 516 (1971). Pleading guilty to any crime of dishonesty thus involves “moral turpitude.” Admitting your guilt to any crime will give any of the Commonwealth licensing boards discretionary power to revoke or suspend a license. Section 16(3) of the Act provides the legal basis for the suspension.

The moral turpitude clause is not limited to physical conduct and acts between a doctor and a patient. Significantly, securing improper insurance payments, it has been held, has everything to do with the practice of medicine. In one case, the doctor asserted that his license should not be suspended because the misconduct to which he pled guilty did not involve a “doctor-patient relationship,” and thus did not relate to the practice of his profession. The court concluded, however, that the offenses to which the doctor pled guilty did relate to the practice of his profession; because he obtained the improper payments by exploitation of his professional position. See Derrick v. Department of State, Bureau of Professional and Occupational Affairs, 60 Pa. Commonwealth Ct. 543, 432 A.2d 282 (1981).

In another case, the state medical board ordered that the licensee be disciplined under the Medical Practice Act of 1985, Pa. Stat. Ann. tit. 63, § 422.41(7), because he knowingly allowed an unlicensed doctor to practice medicine in Pennsylvania and the doctor was acting as more than a consultant at the time of the infraction. Gleeson v. State Bd. of Med., 900 A.2d 430 (Pa. Commw. Ct. 2006).

In the case at bar, a Michigan-licensed medical doctor, was found to have engaged in the practice of medicine and surgery without a license (any of the three that may be obtained) based on the video observations that during a teaching/consultation session of a surgery he scrubbed in and wore surgical attire, touched the patient and performed an “invasive” procedure on the patient during a breast augmentation.

There are several different kinds of licenses that a medical doctor can obtain in order to practice medicine and surgery in Pennsylvania. See 63 P.S. §§ 422.25, 422.29-422.34. Of particular importance, a medical doctor licensed without restriction by another state can acquire a “temporary license,” which would empower him to “teach medicine and surgery or participate in a medical procedure necessary for the well-being of a specified patient within this Commonwealth.” 63 P.S. § 422.33(a)(1) (emphasis added). This particular Section of the Act provides a clear distinction between authorized practice of medicine and surgery and unauthorized practice of medicine and surgery, by requiring a doctor who “participates” in a surgical procedure to obtain, at a minimum, a temporary license in this Commonwealth.

The Board found that the Michigan doctor was not acting as a “consultant” and, therefore, exempt from licensure. See 63 P.S. § 422.16. The “consultation” exemption of the Act provides that: person authorized to practice medicine or surgery or osteopathy without restriction by any other state may, upon request by a medical doctor, provide consultation to the medical doctor regarding the treatment of a patient under the care of the medical doctor.63 P.S. § 422.16 (emphasis added).

The consultation exemption of the Act also makes clear that the act of “consulting” is strictly conducted between a doctor unlicensed in Pennsylvania and a licensed Pennsylvania doctor, not between a doctor unlicensed in Pennsylvania and a patient. Here, Dr. Grafton, as a doctor unlicensed in Pennsylvania, did not limit his involvement to consulting with licensee. Rather, as Dr. Kauffman testified and the videotape demonstrated, Dr. Grafton, “scrubbed” and in surgical attire, physically touched and actually performed a procedure on the patient that was invasive. Therefore, the Court concluded that Dr. Grafton’s actions clearly exceeded the scope of the consultation exemption. Gleeson v. State Bd. of Med., 900 A.2d 430, 436-437 (Pa. Commw. Ct. 2006).

Here no patient complaints were present. Someone complained to the Board about the private surgical practice and the Board took up an investigation of this one procedure. While apparently appropriate, it shows the lengths to which the Boards are now going to investigate any medical license issue.